2009 (3) TMI 205 - HC - Central Excise

Summary

Issues:
Challenge to the vires of Section 35(1) of the Central Excise Act, 1944 regarding condonation of delay in preferring appeals.

Analysis:
The judgment in question deals with petitions challenging an order made by the Commissioner (Appeals) regarding the condonation of delay in preferring appeals. The Tribunal confirmed the Commissioner's order, leading to the petitioner filing a Restoration/Rectification Application, which was subsequently rejected. The primary challenge raised was against the provisions of Section 35(1) of the Central Excise Act, 1944, which limits the power of the Commissioner (Appeals) to condone the delay in preferring appeals to a period of 90 days. The petitioner argued that this provision is ultravires.

The court noted that the issue regarding the vires of the provision had already been decided against the petitioner in a previous judgment. The petitioner relied on an exception mentioned in a previous case to argue that in extraordinary cases, invoking the writ jurisdiction of the High Court could be permissible to avoid gross injustice. However, the court found that in the present case, the appeals were filed more than a year after the issuance of the original orders, with the only reason for delay being the former excise Clerk misplacing the orders and leaving the job without handing over the charge to anyone.

Upon examining the facts of the case, the court concluded that there were no extraordinary circumstances warranting the exercise of powers under Article 226 of the Constitution of India to entertain the cases on their merits. As a result, the court summarily rejected both petitions, stating that the petitioner failed to make a case both in law and in facts, and therefore, the challenges against the orders made by the Commissioner (Appeals) and the Tribunal were dismissed.